Ms O’CONNOR (Hobart) – Mr President, of course I support this Justice Miscellaneous (Commission of Inquiry) Bill of 2024 and we believe it faithfully reflects the commission’s recommendations: 16.9, 16.13, 16.14, 16.18, 17.4, 17.5 and 18.12. It is very strong legislation that amends in total something like 20 pieces of legislation and it sets out that an apology in relation to child sexual abuse can be made without amounting to an admission of liability for the purposes of civil litigation. It provides further changes to the persistent sexual abuse of a child or young person offences to change other uses of the phrase ‘maintaining a sexual relationship with a young person’, to, and rightly so, ‘persistent sexual abuse of a child or young person’.
It extends the position of authority offence, which currently covers penetrative sexual abuse, to also cover indecent acts and indecent assault. It introduces a well overdue similar-age defence provision for the position of authority offences and on behalf of the Greens, I raised this going back to 2022 in debate on the Justice Miscellaneous Royal Commission Recommendations Bill of 2022. I am very glad to see that now, not in response to us raising it because it has been raised by a number of stakeholders, but I am very pleased to see that reform, the absence of which was, in my view, a significant oversight in the original offence. This similar-age defence, as I understand it, was not in the original consultation draft. It has been recommended by the Tasmanian Council of Social Services, Volunteering Tasmania and the Commissioner for Children and Young People.
The Justice Miscellaneous (Commission of Inquiry) Bill removes the requirement for the accused to enter a plea before pre‑trial argument can be conducted. It extends the ability to make jury directions in regard to interpreting delayed complaints to family violence offences. My question to the Leader, given that that was not a specific recommendation of the commission of inquiry, are you able to explain? This is not me taking a position on the jury directions provision. Some concerns have been raised by stakeholders, but this is an extra provision that is in an omnibus bill that gives effect to all those recommendations of the commission of inquiry. This is for the Council to understand why that was included.
There are technical amendments to allow for the admissibility of evidence in a second charge in circumstances where two family violence charges are laid and there is an acquittal on the first charge because the prosecution has advised it will not be tendering evidence. Today a number of members were there in the reception room for the Domestic and Family Violence Alliance presentation and update. We heard really compelling, moving and challenging testimony from two women who had experienced significant physical and sexual abuse when they were children. Each, in their own way, told a story of how that trauma affected the life they led and the choices that were made and, in one instance, careened into the youth justice system on a pathway to more trouble and in the other, repeated damaging relationships.
I know you were there, Mr President, and I am sure you were as struck by everyone else in that room by the dignity and the courage of those victim/survivors who came to talk to us today and once again had to tell their trauma. It is part of what makes providing for the capacity for organisations to apologise without that being the basis for civil claims so important, because it is the recognition of suffering and trauma. It is being open-hearted to listening and taking what we hear as legislators and using it to drive change, make the world a better and safer place for children, for women, for all people.
This omnibus bill also broadens the range of matters that can be considered in a registration to work with vulnerable people assessment. As the minister who introduced this legislation and the structure in the first place – after some struggle, I might say, to get it through Cabinet – it was always the intention that the working with vulnerable people registration scheme would have a capacity to work cross‑jurisdictionally to the greatest extent possible, but also to examine other matters, incidents and patterns of behaviour among people who are applying for registration to work with vulnerable people. Obviously, it is a somewhat complex system and it has taken some time to get the working with vulnerable people registration scheme close to just right, but this change today is another step down the path to make sure the registrar for the registration to work with vulnerable people has all the tools available to them to be able to make sure they do not give registration to someone who would prey on children and young people.
It places a larger emphasis on the precautionary approach, as well as a range of other matters relating to that registration scheme. It sets out that alleged consent or acquiescence of a victim of child sexual abuse must not be taken into account as a mitigating factor in sentencing, and that was put very well by the member for Launceston.
Finally, the bill amends the definition of child sexual offence in the Sentencing Act 1997 to apply to offences against persons under the age of 18. It is currently 17 and, while it was not in the original consultation draft, and reference to it does not seem to have been in any supporting material, I understand that this is because while many child sexual abuse offences in the Criminal Code apply to those under the age of 17, some apply to those under the age of 18. Increasing the age to 18 in this definition would serve to ensure all relevant offending can be captured.
What does it mean to say sorry? We have here in the legislation the definition of apology for the purposes of this act. I know it needs to be that way because that is the exact purpose that we are trying to achieve here, but it is a classic qualified apology. An apology means:
An expression of sympathy or regret, or of a general sense of benevolence or compassion, which does not contain an admission of fault or liability in connection with a matter.
That is a legal definition of apology for the purposes of achieving what we want to achieve in this act, but we all know that the best apologies we give are unqualified and, if we are at fault, we ‘fess up and we take all steps to make it better.
In May of last year, the House of Assembly apologised to victim/survivors of institutional child sexual abuse. We had victim/survivors and their families and supporters in the Long Room, on the lawns of parliament, down at Elizabeth Wharf, in the public gallery and in the Speaker’s Reserve, and it was a profoundly moving moment for the parliament.
Parliament is at its best when, across all corners of the House, there is a resolve to right wrongs. The motion was to express our deep and unreserved sorrow for all that victim/survivors of institutional child sexual abuse suffered, the trauma they endured, and the fact that the trauma was compounded by the inaction of authorities. We committed as a parliament to working together and across the community to deliver on the recommendations of the commission of inquiry, and here we are, Mr President.
The Premier at the time, Mr Rockliff, said to a packed Chamber:
Mr Speaker, the Tasmanian government and the Tasmanian parliament unreservedly apologises to all victims and survivors of child sexual abuse in Tasmanian government institutions. Members of the Tasmanian parliament are united in this House today. We failed you. We are all accountable and we are sorry.
Our institutions have a responsibility to ensure the safety and wellbeing of children, and our institutions have clearly failed in that responsibility. No child should ever experience sexual abuse or any other form of abuse. No child who has been abused should ever experience a response that rejects or minimises their experience. No child should be silenced or punished.
He said:
We are deeply sorry that our institutions violated your trust when they should have been places where you were safe, secure, supported and protected. We have failed you and we accept responsibility for that failure.
That is not a qualified apology. That came straight from the Premier’s heart. I know what it meant to the victim/survivors who were listening.
Next up was the Leader of the Opposition, and she said:
There is no apology that can take away the weight you bear, the loss of your innocence and the sadness that remains with you, but I hope that by making this apology today, we can help ease the burden of your trauma. We are deeply sorry. Sorry for your pain, sorry for your suffering, sorry for the appalling treatment you endured after already experiencing one of the worst things a child can endure, and sorry for failing you when you should have been protected. No one should suffer as you have suffered and along with our sincere apology, we offer you our ongoing compassion and support. We offer our vow that we will work continuously to ensure this never happens again and that Tasmania’s children are protected as they should be in a community that always puts them first.
And I got up after that and said:
In here, we feel and accept your anger towards all of us across political boundaries who could and should have done more. You sure do have the right to be angry and you don’t need anyone in this parliament to tell you that. Every child has the right to feel loved, safe, and wanted, but you are not kept safe. Not by all the adults around you, not by those you had a right to trust, and not by the state of Tasmania, which too often placed you directly in harm’s way. In classrooms with paedophiles dressed up as teachers, in foster homes out of sight and mind and in danger, in youth detention overseen by predators with too much power, too few managers and senior bureaucrats who cared enough, or had the courage to speak for you, and too little government oversight in public hospitals where you were admitted to get better and were instead preyed upon by those your parents unknowingly entrusted you to. To your parents, your families, we are so, so sorry. Your trust was betrayed and your child not kept safe in the arms of the state.
At one level that is just a whole lot of words. Heartfelt sentiments, of course, but at another very significant level, what that apology meant to victim/survivors was very significant.
When we stepped out of the parliament and immersed ourselves into this community that had come to hear the apology there were many, many tears. It is the tears of trauma, of course, but it struck me that they were the tears of the relief of finally having the state of Tasmania acknowledge the depth of its failure and give an unreserved apology. The flow-on from that is the legislation that we debate today – which is strong and necessary legislation.
I close with some correspondence I have received from a victim/survivor. We are about to enact this legislation, where the civil liability component of it is very significant, but there is also the question of what happens in the courts. The trauma is often compounded by the experience of dealing with the court system. This letter came in and it was originally written to the Attorney-General. It has been de-identified but it tells you a story of a court system, a justice system, which is not delivering justice.
Dear Mr Barnett, I am writing to you in your capacity as Attorney-General and Minister for Justice. I am a complainant in a criminal trial. The accused has been charged with persistent sexual abuse of a child or young person. The accused was an employee of the Tasmanian government and my high school teacher when he started to sexually abuse me. I reported the crime to police in August of 2018. It took about seven months for police to substantially complete the investigation and forward the file to the Office of the Director of Public Prosecutions for actions under section 125A(7) of the Criminal Code Act 1924. Everything up to then essentially proceeded as I thought it should. Then the delays started. As at 1 May this year, it has been five years and eight months since my first meeting with the police; four years and 11 months since the police substantially completed the investigation; four years and two months since the accused was charged.
It took the Director of Public Prosecutions about eight months instead of the expected three months to give his written authority. Four years and one month since the accused’s first appearance in the Magistrates Court of Tasmania; three years and five months since the accused’s first appearance in the Supreme Court of Tasmania; one year and 10 months since I received my preliminary advice notice as a witness from the Supreme Court of Tasmania asking me to be available for a trial sometime after 25 July 2022. So far, the matter has been listed for court 31 times.
A victim/survivor, whose evidence was such that the Director of Public Prosecutions, agreed to move to charge – the matter has been listed for court 31 times, and it is nearly six years since this woman was first interviewed by police. The question that she asks of the Attorney‑General, or she would like us to put to the Attorney‑General, is how many of the Supreme Court of Tasmania’s current pending cases, criminal appeal and non-appeal, have been waiting more than 24 months for a trial, and of those, how many have been waiting more than 36 months or 48 months and longer for a trial? What steps has the Tasmanian government taken to date to address the criminal case backlog, and what steps is the Tasmanian government planning to take to address the criminal case backlog?
We have a long way to go, because while this legislation is very important – it is a very significant bill that gives effect, as I said, to those core recommendations of the commission of inquiry – it is not enough. If we are serious – if we say sorry and the House of Assembly said sorry; the Premier apologised to victim/survivors of past abuse in institutional settings – it has to be more than words.
We have an issue here with the way the justice system responds to people who have experienced sexual abuse as children. I know we have another bill that will come forward, the Evidence (Children and Special Witnesses) Amendment Bill. That is welcome, but there are delays here that are inexcusable. Perhaps the Leader of Government Business could address that in part, but if you are unable –
Mrs Hiscutt – It sounds like it should be a question on notice.
Ms O’CONNOR – Or at Estimates, coming up. It is a bigger question than you might be able to answer on the advice that you have available to you today. Anyway, I will be glad to support this legislation. Well done to the minister and his advisers and the Department of Justice. Thank you for the briefing, and thank you for your commitment to seeing the commission of inquiry recommendations delivered on as Tasmanians expect.
